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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`*
`PARKERVISION, INC.
`April 10, 2023
`*
`
`*
`VS.
` * CIVIL ACTION NO. 6:22-CV-1162
`REALTEK SEMICONDUCTOR
`*
` CORP.
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`MOTIONS HEARING (via Zoom)
`
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Court Reporter:
`
`Zachary H. Ellis, Esq.
`The Mort Law Firm, PLLC
`100 Congress Ave, Ste 2000
`Austin, TX 78701
`Ronald M. Daignault, Esq.
`Daignault Iyer LLP
`8618 Westwood Center Drive, Ste 150
`Vienna, VA 22182
`Mark Siegmund, Esq.
`Cherry Johnson Siegmund James, PLLC
`The Roosevelt Tower
`400 Austin Avenue, 9th Floor
`Waco, Texas 76701
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided transcription.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 2 of 17
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`2
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`(Hearing begins.)
`DEPUTY CLERK: A civil action in Case
`6:22-CV-1162, ParkerVision, Incorporated versus Realtek
`Semiconductor Corp. Case called for a motions hearing.
`THE COURT: Announcements from counsel,
`
`please.
`
`MR. ELLIS: Good afternoon and a belated
`happy Easter, Your Honor. This is Zak Ellis, along
`with Ron Daignault for plaintiff ParkerVision.
`THE COURT: And happy Easter to you as
`
`well.
`
`MR. SIEGMUND: Good afternoon, Your
`Honor. Mark Siegmund specially appearing on behalf of
`defendant Realtek.
`THE COURT: Okay. Anyone else?
`MR. SIEGMUND: That's it, Your Honor.
`
`Just me.
`
`THE COURT: Okay. My understanding is
`that the issue is whether or not ParkerVision has
`effectuated service under Federal Rule of Civil
`Procedure 4(f)(2)(C)(ii), one of my favorite sections
`of the Rules of Federal Procedure.
`And it's my understanding that if they
`have not done so and they've gotten a signed receipt,
`then they have not adequately served. I think that's
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 3 of 17
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`the issue. So I'll hear first from the plaintiff.
`MR. SIEGMUND: Your Honor, if I might, my
`understanding, and I'm -- plaintiff is -- feel free to
`disagree with me. But I thought we were actually here
`for plaintiff's motion for entry of default. Because
`they had actually filed a motion to withdraw or a
`motion for alternative service. Unless we're just both
`saying the same thing. But that was my understanding.
`MR. ELLIS: That's a different thing.
`So I think what Your Honor's asking is
`just has plaintiff effectively served under
`4(f)(2)(C)(ii).
`THE COURT: Correct.
`(Simultaneous conversation.)
`THE COURT: -- service.
`MR. ELLIS: Right. So yeah. Your Honor,
`the answer is yes. And we have a signed receipt from
`FedEx that -- well, here's the story of what happened.
`So we served defendant back in December.
`The clerk sent copy of the summons and complaint via
`FedEx to defendant.
`They're a Taiwanese corporation. Taiwan
`has not prohibited that service. The
`State Department even says on the travel.state.gov
`website that Taiwan defendants can be served through
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 4 of 17
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`4(f)(2)(C)(i) via FedEx.
`FedEx shows up to defendant's
`headquarters. They deliver to the receptionist desk
`and FedEx files a proof of delivery. It says
`"delivered" with a checkmark.
`It was delivered to someone at
`defendant's headquarters named R. Fan. That is a prima
`facie case that they were effectively served, if we
`were under -- if they had filed a 12(b) motion and we
`were arguing about this.
`But as Mr. Siegmund pointed out, this is
`just about default. And so based on the record that we
`have and without any affidavits or other evidence on
`defendant's side, it's a resounding yes, That defendant
`was properly served under 4(f)(2)(C)(ii).
`THE COURT: A response to that?
`MR. SIEGMUND: Yes, Your Honor. Thank
`you. Mark Siegmund on behalf of the defendant.
`So we do disagree that service was
`proper. Under Taiwanese law, there's only one way to
`affect proper service, and that's through letters
`rogatory.
`
`Another plaintiff in the Eastern District
`of Texas who filed a complaint only a week or two after
`the plaintiff in this case did serve by via letters
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 5 of 17
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`rogatory and service was effectuated proper. Realtek
`answered in March of this year.
`They didn't do that here. What they did
`is they just mailed a copy of the complaint via FedEx
`to Realtek, which is improper under Taiwanese law.
`Furthermore, we also very much dispute
`that service was even effectuated even assuming that
`that type of service was not prohibited. And if you
`actually look at the FedEx record, which I'm happy to
`pull up if Your Honor would like to, on Monday
`December 19th, the record's pretty clear that that's
`when it arrived at the FedEx facility. It was
`supposedly brought to Realtek where it says
`"delivered."
`
`But then on the very same day, Your
`Honor, it said it was back at the FedEx delivery
`location. And then the next couple of days they tried
`to keep on serving Realtek. And there's a notation
`that says service refused. Because service is improper
`under that method under Taiwanese law.
`So we -- first and foremost, we
`absolutely dispute the fact that Realtek was served.
`And as Your Honor knows, under In Re: OnePlus and its
`progeny coming from this Court after that, is a
`plaintiff is supposed to attempt to properly serve the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 6 of 17
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`6
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`defendant first. And then if something happens where
`service can't be effectuated under proper means,
`alternative service is an appropriate remedy.
`In this case the plaintiff didn't do
`that. They moved for alternative service. We
`responded to that motion. The briefing is now
`complete.
`
`But then ParkerVision, for whatever
`reason, decided to withdraw that motion and it is now
`saying that we are in default because we haven't
`otherwise defended this action. Which I think is me
`sitting here before the Court arguing this very thing
`simply is inaccurate. We have otherwise defended this
`action. And the motion for entry of default is
`procedurally and legally completely improper.
`I can give you three reasons why you
`should deny the motion for entry of default, Your
`Honor. I'll start with the easiest one: We are
`otherwise defending the action. All the law requires
`under Federal Rule of Civil Procedure 55 is simply
`that.
`
`Actually, under the Fifth Circuit it even
`requires a whole lot less than what we've done in this
`case. It just requires phone calls and e-mails
`suggesting that service wasn't proper.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 7 of 17
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`7
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`Here we've actually opposed their
`alternative service motion as well as opposed the
`motion for entry of default, which is what I thought
`this hearing was about here today. So we've certainly
`met the "otherwise defended" standard under the Fifth
`Circuit law and under the Federal Rules of Civil
`Procedure.
`
`And then secondly, as I just discussed,
`Your Honor, service was not proper. The only proper
`way to do that recognized under Taiwanese law is via
`letters rogatory. And under Federal Rule of Civil
`Procedure 4(f)(2)(C)(ii) it has to not be prohibited by
`the foreign country's laws. This one is.
`So specifically, Your Honor, counsel
`mentioned the State Department website. Well, if you
`actually read what the State Department website says it
`says, it says very clearly in a disclaimer that this
`information is for general purposes only and the
`information may not be accurate.
`And later on in the very website it says
`that Taiwan likely does not actually recognize this
`type of service. So even on the evidence that the
`plaintiff relies on it's not entirely true. I mean, it
`was general information from the website.
`And then third and finally, Your Honor,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 8 of 17
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`8
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`you should deny the motion for entry of default because
`it's procedurally improper. At the time they filed
`their motion for entry of default, the alternative
`service motion was pending and awaiting a ruling from
`this Court. And I think that that's just entirely
`procedurally improper under the Federal Rules of Civil
`Procedure.
`
`So I think that's pretty much all I have,
`Your Honor, unless you have specific questions for me.
`THE COURT: I do not.
`Anything else from plaintiff?
`MR. ELLIS: Sure.
`Number one, we're not in Taiwan. We're
`not following Taiwanese law here; we're following
`U.S. law.
`
`And we have a page and a half of case
`cites in our reply brief in support of our default --
`motion for entry of default of courts, including this
`one, finding that Taiwan does not prohibit service the
`way we did it.
`And we didn't send anything. The Clerk
`of Court sent service to Taiwan and sent the FedEx to
`Realtek's headquarters, where FedEx had a delivery
`confirmation and it was effected at the front desk or
`the receptionist area there.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 9 of 17
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`So we would refer the Court to our reply
`brief to see that time and time again the way we did it
`was proper under the federal rules.
`And what it sounds like defendant wants
`is it wants the Court to say, the only way to serve a
`Taiwanese company or defendant is through letters
`rogatory. And that is just simply not true based on
`all the case law that we cited.
`Several of the cases of which we sent to
`the defendant and notified them that their position was
`legally improper, and they chose to file a response in
`opposition anyway and didn't cite any of those cases to
`the Court. That's a separate issue.
`If you look at our reply brief, we can
`see that letters rogatory is not the only way to serve
`a Taiwanese company. They're not a member of the
`Hague. And they -- the law in Taiwan does not prohibit
`the way that we served them, which was through the
`Clerk of Court sending via international registered
`mail with a return receipt that we filed with the Court
`in our acknowledgement of service back in December.
`You know, it's been 82 days since
`defendant was supposed to file. They could have filed
`a 12(b) motion and raised this issue. They chose not
`to, and now they're specially appearing to argue this
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 10 of 17
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`very narrow issue instead of addressing the merits.
`We think that's also improper and
`default, you know, is the proper remedy here where --
`THE COURT: Let me interrupt you for a
`
`second.
`
`Mr. Siegmund, let's say I deny your
`motion. What is the next step the defendant takes?
`MR. SIEGMUND: So just to confirm, Your
`Honor, let's say that you deny the motion for entry of
`default. Is that --
`THE COURT: Correct.
`MR. SIEGMUND: Okay.
`(Simultaneous conversation.)
`THE COURT: -- case just sit around
`
`forever.
`
`MR. SIEGMUND: No. I mean, all they have
`to do is -- Your Honor, if they had served letters
`rogatory in November, we would have already been served
`and we would have moved on in this case.
`I mean, I can cite you to the case in the
`Eastern District where that literally happened. And it
`was actually pretty darn fast. I mean, it was within
`60 days. So that would have been the proper thing for
`them to do. And had they done that, we wouldn't even
`be here. It wouldn't even be an issue. So I think
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 11 of 17
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`that would be the proper method.
`And to address the point, Your Honor, is
`the very long list of cases they cited in the reply
`brief. They're conflating actual proper service with
`when courts granted alternative service. And what we
`are saying is under normal service what they did is not
`proper under Taiwanese law, meaning it's not proper
`under Federal Rule of Civil Procedure 4.
`If the Court granted alternative service,
`well, I mean, the Court has that power, but we would
`also suggest that under the Court's current guidance it
`shouldn't do that, because they didn't attempt proper
`service first and then come back to the Court for
`alternative service. And that's the In Re: OnePlus
`opinion from the Federal Circuit.
`All of your cases since that time, Your
`Honor, have required an attempt of proper service first
`before alternative service. And I've been on that side
`of the fangs and I didn't necessarily like it, but
`that's the way the case law is.
`So I think if you deny the motion for
`entry of default, plaintiff should go through proper
`service. And if for some crazy reason proper service
`doesn't happen, then they can seek alternative means of
`service.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 12 of 17
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`THE COURT: See, I seem a lot fairer when
`you're on that side of the table.
`(Laughter.)
`THE COURT: Don't I?
`Anything else the plaintiff wants to say?
`MR. ELLIS: Sure.
`We're not conflating alternative service.
`That's 4(f)(2)(iii). We served under 4(f)(2)(ii).
`Alternative service is when the Court, you know, grants
`either service via e-mail on counsel or sending
`registered mail to counsel. We're not conflating
`those.
`
`We're under a very specific method of
`service that we don't need the Court to approve
`beforehand. And time and -- again, a page and a half
`of cases that -- including this district, including the
`Western District of Texas, that find that this is
`proper.
`
`And I don't think, Your Honor, that he
`answered your question of what's going to happen next.
`You know, our concern is, if we don't get a default,
`that they a file a 12(b) motion and we're back in front
`of Your Honor having the same argument.
`I think default is proper here to put an
`end to that when they could have done this a long time
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 13 of 17
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`13
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`ago, back in the beginning of the year.
`So, you know, we would understand, as an
`alternative, denying our motion without prejudice and
`maybe giving defendant, you know, seven days to file an
`answer or an order that specifically -- with an order
`that specifically states service was proper.
`We think that could be fair, because we
`know that the Court doesn't favor going the default
`route. But just the circumstances of this case, you
`know, we're advocating for default first and foremost.
`THE COURT: I think what I heard
`Mr. Siegmund saying, at least between the lines, was
`that if you were to -- if the plaintiff were to go the
`route of letters rogatory, that that would be the
`correct method to do it. And if that were
`unsuccessful, then you could come to me for alternative
`service.
`
`And his opinion is, the way I interpret
`it is, plaintiff has failed to do -- take that step;
`therefore, it would be inappropriate for me at this
`point to allow for alternative service.
`That's the way I interpret it.
`MR. SIEGMUND: That's correct, Your
`
`Honor.
`
`MR. ELLIS: I can address that directly,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 14 of 17
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`that we did not serve -- we did not need to serve
`through letters rogatory because we're not required to.
`Service by FedEx under 4(f)(2)(C)(ii) is
`a proper method of service. We don't need the Court's
`approval.
`
`It's different than alternative service.
`You know, alternative service, again, is 4(f)(2)(iii).
`4(f)(2)(ii) is the Clerk of the Court sending via
`registered mail return receipt, and that's the way we
`did it. And yeah.
`THE COURT: If you give me one second.
`(Pause in proceedings.)
`THE COURT: Okay. Let me see if I can
`adequately make both sides unhappy today.
`First off, I'm going to deny the request
`for default. If for no other reason than I agree with
`Mr. Siegmund that it's hard to enter default when
`they've got a lawyer sitting here. I don't think that
`would last very long in the federal system.
`However, because -- and I get he's here
`by special appearance. But because defendant has
`counsel and because I think that the plaintiff has at
`least attempted to serve the defendant in good faith,
`and because I think that I'd like to get this case
`going because of how long it's been around --
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 15 of 17
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`15
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`Mr. Siegmund, what do you think would be
`a fair period of time if I were to order you or counsel
`to accept service as an alternative service, what do
`you think a fair time would be? 30 days?
`MR. SIEGMUND: I think that's about
`right, Your Honor. Your standard under your OGP.
`THE COURT: Okay. So I'm going to order
`the alternative service by the plaintiff on
`Mr. Siegmund on behalf of the -- his client. And it
`will be effective in 30 days. And that will give
`Mr. Siegmund an opportunity to communicate with his
`client. And they can get to work on coming up with an
`answer or a motion or whatever.
`MR. SIEGMUND: And, Your Honor, if I
`might, and I'm not arguing with your ruling, but I did
`just want to make sure the record's clear that there is
`no pending alternative service motion. It was
`withdrawn as agreement by the parties.
`So this would be a sua sponte --
`THE COURT: It is.
`MR. SIEGMUND: Okay. Got it. Thank you.
`THE COURT: Okay. Anything else,
`
`Counsel?
`
`Your Honor.
`
`MR. ELLIS: Nothing else. Thank you,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 16 of 17
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`16
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`THE COURT: I'm trying to be very
`Solomon-like. And so anything else we need to take up?
`MR. SIEGMUND: Not from defendant, Your
`Honor. Thank you.
`THE COURT: From plaintiff?
`MR. ELLIS: Nothing for plaintiff, Your
`Honor. Thanks.
`THE COURT: You guys have a good
`afternoon. Take care.
`(Hearing adjourned.)
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:22-cv-01162-ADA Document 37 Filed 04/14/23 Page 17 of 17
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`UNITED STATES DISTRICT COURT )
`WESTERN DISTRICT OF TEXAS
`)
`
`I, Kristie M. Davis, Official Court
`Reporter for the United States District Court, Western
`District of Texas, do certify that the foregoing is a
`correct transcript from the record of proceedings in
`the above-entitled matter.
`I certify that the transcript fees and
`format comply with those prescribed by the Court and
`Judicial Conference of the United States.
`Certified to by me this 14th day of April
`
`2023.
`
`
`
`
`
`
`/s/ Kristie M. Davis
`KRISTIE M. DAVIS
`Official Court Reporter
`800 Franklin Avenue
`Waco, Texas 76701
`(254) 340-6114
`kmdaviscsr@yahoo.com
`
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`